Violent profits are damages that can be claimed by a property owner from someone who continues to occupy a property without legal right to do so. Violent profits are a form of damages which are generally calculated in relation to the amount that the owner of the property could have obtained in renting the property out if they had had vacant possession, and can be up to double the rental value if the possession is in bad faith
In a recent case, Almond Housing Association -v- John Docherty [2025] SC LIV 101, we successfully argued on behalf of Almond Housing Association (AHA) that payments of violent profits do not by themselves create a tenancy agreement. We are grateful to Michel Way, of Ampersand Advocates, for his assistance in the evidential hearing.
Almond Housing Association -v- John Docherty [2025] SC LIV 101
In a recent decision in Livingston Sheriff Court, Sheriff McDonald ordered the eviction of the occupier from an adapted property previously occupied by his mother under a Scottish Secure Tenancy Agreement. When the mother passed away in 2023, the occupier sought to succeed the tenancy. Where a property is adapted there is a specific rule in the Housing (Scotland) Act 2001 that a person who otherwise would have succeeded will not so long as suitable alternative accommodation is offered.
The occupier refused the alternative accommodation and AHA made clear that the occupier had no right to occupy the property. AHA sought an eviction order on this basis, and there was a lengthy back and forth around whether the occupier needed an adapted property, though it was ultimately conceded by the tenant that he did not. On several occasions, payments were made to AHA, both by the occupier and through benefits. At a late stage in proceedings the occupier changed his defence and said that acceptance of these payments meant that AHA had entered into a Scottish secure tenancy with him.
In his decision, Sheriff McDonald concluded that AHA accepting payments did not create a tenancy agreement. There was no consensus in idem between the parties as to the creation of a Scottish Secure Tenancy. There was no agreement that the payments made constituted rent, and these were instead violent profits. The Sheriff granted the Order against the occupier. Sheriff McDonald noted AHA had remained broadly consistent in their approach in accepting payments and had maintained the position that the Defender was not entitled to succeed the tenancy.
Why this Matters for Social Landlords?
This case highlights that social landlords should ensure clarity when approaching tenancy succession and violent profits and ensure that they are clear and consistent in contact with occupiers around refusing succession.
Caution should be exercised when accepting payments from an unauthorised occupier. If a social landlord wishes to accept payments for unauthorised occupation, they should ensure it is made clear to the occupant that payments made will not be considered rent and will be held in a separate violent profit account. It should be made clear to the occupier that the landlord has not agreed, and does not agree, to allow them to stay in the property.
Finally, social landlords should ensure keep clear and precise records, such as letters, notices and offers of alternative accommodation to establish that continued occupation is unlawful.
Key Takeaways
In the case of violent profits, the message for social landlords is clear: be proactive, precise and transparent when handling end of tenancies and succession. For more information or advice, contact our team.
